The Attorney General’s Guidelines on Plea Discussions in Cases of Serious or Complex Fraud set out a process by which a prosecutor may enter into discussions with a suspect before charge in cases of serious or complex fraud. (Guidelines A1)

For these purposes ‘prosecutor’ includes any member of the SFO, whether a lawyer or an investigator. All references to the prosecutor in this guidance should be read in this way.

The purpose of plea discussions in such cases is to narrow the issues and, if possible, reach a ‘plea agreement’ about acceptable guilty pleas. (Guidelines A5) There may be benefits even if the case subsequently proceeds to trial. (Guidelines A6)

The over-riding duty of the prosecutor is, of course, to see that justice is done. The procedures must command public and judicial confidence. (Guidelines A7)

Many defendants in serious and complex fraud cases are represented by solicitors experienced in commercial litigation, including negotiation. This means that the defendant is usually protected from being put under improper pressure to plead. The main danger to be guarded against in these cases is that the prosecutor is persuaded to agree to a plea or a basis that is not in the public interest and interests of justice because it does not adequately reflect the seriousness of the offending.

Where a plea agreement is reached, it remains entirely a matter for the court to decide how to deal with the case. (Guidelines A9)

Where the defendant enters into a signed plea agreement, it may be used subsequently as confession evidence or as admissions. (Guidelines C8)

Any plea agreement must reflect the seriousness and extent of the offending and give the court adequate sentencing powers. It must consider the impact of an agreement on victims and also the wider public, whilst respecting the rights of defendants. (Guidelines B1 to B3)

For the purposes of the Attorney General's Guidelines on plea discussions in cases of serious or complex fraud, fraud means any financial, fiscal or commercial misconduct or corruption which is contrary to the criminal law. It is for the prosecutor to decide whether or not a case is one of fraud, and whether or not it is serious or complex.

The definition is broad enough to cover bribery and other offences such as misconduct in public office. Two of the factors set out in Guideline A2 must also be present:

The amount obtained or intended to be obtained is alleged to exceed £500,000

There is a significant international dimension

The case requires specialised knowledge of financial, commercial, fiscal or regulatory matters such as the operation of markets, banking systems, trusts or tax regimes

The case involves allegations of fraudulent activity against numerous victims

The case involves an allegation of substantial and significant fraud on a public body

The case is likely to be of widespread public concern

The alleged misconduct endangered the economic well-being of the United Kingdom, for example by undermining confidence in financial markets.

Where any two or more of these criteria are satisfied, discussions are likely to be advantageous and prosecutors should consider initiating them unless there is some reason not to do so.

One reason may be that the defendant is unrepresented. (Guideline C1) It may nevertheless be appropriate to write to the defendant asking him/her to pass the letter to solicitors. (See: Invitation Letter and Unrepresented Defendant section).

In a multi-handed case where one defendant is approached, fairness is likely to demand an approach to all defendants if the appropriate stage has been reached in relation to all.

Different considerations apply where one defendant may give assistance or evidence under sections 71-75 Serious Organised Crime and Police Act 2005 (SOCPA). Any agreements under sections 71-75 should be concluded and all necessary steps taken before offering to commence discussions with other defendants – see Witness immunities and restricted use agreements section.

You should give careful consideration to the likely impact on the whole case if any one or more defendants take part in unsuccessful plea discussions. (See Failed Plea Discussions section).

Nothing in the Attorney General's Guidelines on Plea Discussions in cases of serious or complex fraud affects the application of the Code for Crown Prosecutors (The Code), the Attorney General’s Guidelines on the Acceptance of Pleas and the Prosecutor’s Role in the Sentencing Exercise or the procedure in R v Goodyear [2005] EWCA 888 for seeking a sentence indication from the trial judge.(Guidelines A3)

Whether or not there have been plea discussions, these Guidelines expressly preserve the possibility of informal discussions between advocates at court before trial in accordance with the existing Guidelines on Acceptance of Pleas. (Guidelines A4, A8)

The Guidelines do not change the law on discounts for pleading guilty or on powers of confiscation. They do not offer any incentive to the defendant other than the opportunity to have an input into the prosecutor’s selection of charges, the basis of plea and submission on sentence; and to see the case finalised more quickly than would otherwise be the case.

Prosecutors are referred to paragraph 45 of the amended Consolidated Criminal Practice Direction for the procedure on a guilty plea generally and to paragraphs 45.16-45.28 regarding Plea Discussions in Cases of Serious or Complex Fraud specifically.

A Crown Prosecutor in the Fraud Prosecution Service (FPS), Organised Crime Division (OCD) or Special Crime Division (SCD) with the written authorisation of their Head of Division. (Plea discussions are limited to cases formally taken on by the FPS, OCD and SCD in accordance with internal CPS procedures.)

If the trial is to be conducted by an in-house advocate it may be appropriate for that person to conduct the discussions, provided he or she is already fully involved in the preparation of the case.

Sometimes it may be appropriate or desirable for a member of the self-employed bar to conduct discussions. This may be so where that person has been involved from the earliest stage and has advised extensively on the case. If so, they must be specifically authorised, have clear instructions and must not engage in discussions without the prosecutor being present. Formal control of discussions and any significant decisions in respect of the plea discussions remain with the prosecutor.

Timing

Discussions under the Attorney General's Guidelines on plea discussions in cases of serious or complex fraud can take place at any time. It is intended that plea discussions should happen at the earliest possible stage. The earlier in the case they start, the more advantageous they are likely to be.

It is not the intention, however, that they should be based on purely speculative approaches.

The prosecutor should not initiate plea discussions until he or she has a clear idea of the extent of the suspect’s criminality. This will not usually be until after the suspect has been interviewed under caution. (Guidelines C2)

Ensuring that the defendant is dealt with for their full offending is more important than saving investigative costs.

Admissions in interview will be the clearest possible indicator of real willingness to plead and therefore the potential benefit of discussions.

The prosecutor should be alert to any attempt by the defendant to use plea discussions as a means of delaying the investigation or prosecution, and should not initiate or continue discussions where the defendant’s commitment to the process is in doubt or where it is apparently being used for purely tactical purposes. (Guidelines C3)

Invitation letter

A prosecutor who wishes to initiate plea discussions must send a letter to the defendant’s representatives. (Guidelines C4) If it is not known whether the defendant is represented, it can be addressed to the defendant asking him/her to pass it to solicitors.

Unrepresented defendants

Prosecutors will not initiate discussions with a defendant who is known to be unrepresented. (C1)

They should consider any approach from an unrepresented defendant with particular care. The fact that a defendant does not instruct a solicitor may suggest that it will be difficult to have a productive discussion.

The prosecutor should only meet with a defendant who is not legally represented if the defendant agrees to the meeting being tape recorded, or to the presence of an independent third party. (D5)

Procedure

Where the defence agree to engage in plea discussions, the prosecutor should reply in writing, setting out the way in which the discussions will be conducted and the undertakings that will be provided. This would also apply in the exceptional situation where the prosecutor agrees to an unrepresented defendant’s request to enter discussions. (Guidelines C5 to C10)

Until issues of confidentiality and use of information have been agreed to the satisfaction of both parties, and the agreement is reflected in signed undertakings, the prosecutor must not continue with the substantive plea discussions. (Guidelines C10)

Undertakings

The engagement letter should deal with the prosecutor’s undertakings concerning the confidentiality of information provided by the defence during discussions. These are, of course, subject to the prosecutor’s obligations to disclose unused material to co-defendants. (Guidelines C6)

Public interest immunity should be claimed on any such material, on the basis of the duty of confidentiality owed to a defendant taking part in discussions. Disclosure may, however, be ordered on the basis that it is necessary to ensure a fair trial for the co-defendant.

Confidentiality

The prosecutor will usually undertake not to disclose the fact that the defendant has taken part in plea discussions, or any information provided by the defendant in the course of the discussions. This must always be subject to the law in relation to disclosure of unused material to another defendant. (Guidelines C6)

The defendant’s representatives should also provide undertakings as to confidentiality of information provided by the prosecutor. (Guidelines C7)

Use of information

The prosecutor will normally undertake not to rely on:

the fact the defendant has taken part in plea discussions; or

any information provided by the defendant as evidence against the defendant if the discussions should fail. (C8)

Where discussions have led to a signed plea agreement the prosecutor may (C8), however:

rely upon a concluded and signed plea agreement as confession evidence or as admissions

rely upon any evidence obtained from enquiries made as a result of information provided by the defendant

rely upon information provided by the defendant as evidence against him or her in any prosecution for an offence other than the fraud which is the subject of the plea discussion and any offence which is consequent upon it, such as money laundering; and

rely upon information provided by the defendant in a prosecution of any other person for any offence (so far as the rules of evidence allow). See ‘Continuing the investigation’ section.

Flexibility

There is a limited amount of flexibility for undertakings to deal with exceptional circumstances.

The prosecutor may in some cases reserve the right to bring other charges, if for example:

substantial new information comes to light at a later stage

the plea agreement is rejected by the court; or

the defendant fails to honour a signed agreement.

The prosecutor must not surrender the ability to rely on a signed plea agreement as evidence against the defendant. (Guidelines C9)

Commencing discussions

Only once the procedures outlined above have been completed is it appropriate to begin substantive discussions with the defence.

Scope of discussions

The intended outcome of plea discussions will be a written plea agreement that can be submitted jointly to the court to resolve the proceedings without the need for a trial. (Guidelines A5)

Even where plea discussions do not reach this outcome they will help to narrow the issues in a case, and may help reduce the anxiety and uncertainty for victims and witnesses by doing so. (Guidelines A6)

The prosecutor must make it clear from the start of discussions that the court has an absolute discretion to reject any agreement. (Guidelines A6)

Transparency

In order to command public support, the whole process must be completely transparent to the defendant, the victim(s), the investigator and the court. (Guidelines B4)

In order to achieve this, the prosecutor must:

Ensure that a full and accurate record of the plea discussions is prepared and retained

Ensure that the defendant has sufficient information to enable him or her to play an informed part in the plea discussions

Communicate with the victim before accepting a reduced basis of plea, wherever it is practicable to do so, so that the position can be explained; and

Ensure that the plea agreement placed before the court fully and fairly reflects the matters agreed. The prosecutor must not agree additional matters with the defendant which are not recorded in the plea agreement and made known to the court.

Involvement of investigator

The investigator does not need to be present in meetings. The prosecutor should nevertheless ensure that the investigating officer is fully apprised of developments in the plea discussions and his or her views are taken into account. Final decisions in the discussions remain with the prosecutor, not the investigator. (Guidelines D7)

In relation to the SFO, it should be noted that plea discussions can be carried out by an SFO investigator with the approval of the Head of Domain.

Duration of discussions

The prosecutor should continuously monitor progress and satisfy him/herself that discussions remain purposeful and advantageous. Agreement would normally be expected to have been reached within 3 months.

Legal Aid Regulations in force from 4 August 2009 make defence funding available for an initial period of 3 months (subject to extension) in cases where a trial would be expected to last for more than 25 days.

In a privately funded case a 3 month deadline is also a useful indicator. Unless agreement is imminent or there are exceptional circumstances and real progress is being made, discussions should not be continued beyond this point.

Prosecutors should be alert to the dangers of plea discussions being used as a delaying tactic. (C3)

Format of Discussions

Whether discussions are conducted by correspondence, by face-to-face meetings or by a combination of the two is a matter for the parties to decide in the individual case. (Guidelines D4)

An early face to face meeting followed by correspondence to finalise areas of dispute is likely to be the most efficient approach.

Prosecutors should be alert to the possibility that the defence may have in mind an exploratory discussion. Any proposals put forward by them at the first meeting are unlikely to be their final offer. Prosecutors should set out a firm negotiating position that fully reflects the strength of the case from the beginning.

The defendant’s representatives should have full instructions for the meeting and be able to put forward a clear proposal. They can then take further instructions following the meeting in the light of the discussions.

The defendant cannot insist on being present. the Attorney General's Guidelines on plea discussions in cases of serious or complex fraud are silent on this point. The presence of the defendant is effectively at the discretion of the parties.

In many cases it will be preferable to conduct the initial meeting without the defendant present, in order to encourage a frank exchange of views between the parties. In other cases it may not be possible to reach agreement without the defendant being present.

If the defendant is to be present then the prosecutor will need to exercise additional care. Whereas a defendant’s solicitors will be professionally bound by undertakings concerning confidentiality, there will be no such sanction against a defendant. Having said this, however, it will not be possible to enforce confidentiality undertakings against legal representatives in respect of giving information to their clients.

Where a defendant insists on being present as a condition of discussions taking place, prosecutors will have to use their judgement as to the consequences of refusing to meet with the defendant. It is, of course, not possible to exclude discussions with unrepresented defendants.

It should also be borne in mind that a defendant must personally sign a declaration to accompany the signed plea agreement that is to be presented to the court. (Guidelines E1) This may make it difficult to insist on excluding the defendant from all stages of the discussions.

Continuing the Investigation

The prosecutor should preserve the position during the plea discussions, for example by restraining assets in anticipation of making a confiscation order. (Guidelines C3)

There is no bar on continuing the investigation while discussions are going on. This includes making use of any information supplied by the defendant as a basis for further enquiries. (Guidelines C8)

However, prosecutors should be aware that, should the plea discussions fail, the admissibility of evidence obtained as a result of information provided by the defendant is likely to be challenged and will be a matter for the judge to decide. Prosecutors should ensure that the origin of this sort of evidence is clearly recorded, in anticipation of just such an argument.

Prosecutors should also be aware that an unreasonable delay in the investigation even though resulting from plea discussions may later be taken into account by a judge who is asked to consider a request for an adjournment or stay if the discussions fail.

Statement of Case

Once the relevant undertakings have been given, the prosecutor will provide a statement of case against the suspect. (Guidelines D1)

This should be limited to a written summary of the nature of the allegation and a list of proposed charges, unless there is a good reason to serve underlying material.

The prosecutor is not obliged to reveal to the suspect all of the information or evidence supporting his case, provided that this does not mislead the suspect to his or her prejudice.

The prosecutor should examine with care any defence request for further supporting material. Disclosing one document is likely to lead to a defence request to see others.

A statement of case may not be necessary when plea discussions are initiated after proceedings have been commenced, if the prosecutor has already provided the defence with a case summary or opening note. (Guidelines D2)

Unused Material

The Guidelines do not affect the prosecutor’s existing duties in relation to the disclosure of unused material. (Guidelines D3)

Where plea discussions take place prior to the institution of proceedings (and therefore the statutory disclosure regime does not apply) the prosecutor should still ensure that the suspect is not misled as to the strength of the prosecution case. The statement of case should make clear any limitations of the prosecution case and any evidence tending to exculpate the defendant or limit his liability.

It will not generally be the case that unused material will need to be disclosed in accordance with the provisions of the Criminal Procedure and Investigations Act 1996. However, consideration should be given to reasonable and specific requests by the defendant for disclosure.

Recording Discussions

It is essential that a full written record is kept of every key action and event in the discussion process, including details of every offer or concession made by each party, and the reasons for every decision taken by the prosecutor. Minutes of meetings between the parties should be kept and agreed and signed. (Guidelines B4, D5)

Tape recording or verbatim noting of meetings is unnecessary and likely to inhibit free discussion. Minutes should be limited to the main points of discussion and agreement, as agreed at the close of the meeting.

Where, exceptionally, discussions take place with an unrepresented defendant, any meeting should be tape-recorded (as an exception to the normal rule) or in presence of third party (i.e. not a potential or actual co-defendant or witness in the case).

It is important to be aware that this record will eventually be seen by the judge as the minutes of meetings will form part of the bundle sent to the judge when requesting the court to sentence on the basis of a plea agreement. (Guidelines E4 and Criminal Procedure Rules Part 45)

Selection of charges

The decision on appropriate charges must be made in accordance with sections 7 and 10 of the Code for Crown Prosecutors.

The prosecutor must ensure that: (Guidelines D7):

The charges reflect the seriousness and extent of the offending

They give the court adequate powers to sentence and impose appropriate post-conviction orders

They enable the case to be presented in a clear and simple way (bearing in mind that many cases of fraud are necessarily complex)

The basis of plea enables the court to pass a sentence that matches the seriousness of the offending, particularly if there are aggravating features

The interests of the victim, and where possible any views expressed by the victim, are taken into account when deciding whether it is in the public interest to accept the plea; and

The investigating officer is fully apprised of developments in the plea discussions and his or her views are taken into account.

The full Code test must be made out in respect of each proposed charge. In considering whether the evidential stage of the test will be met, the prosecutor should assume that the offender will sign a plea agreement amounting to an admissible confession to the charge. (Guidelines D8)

If the offender subsequently fails to sign a plea agreement then the prosecutor will need to reassess the decision on each proposed charge.

Sentencing

Agreed facts

A plea agreement should resolve any factual disputes, so that the court can sentence the defendant on a clear, fair and accurate basis. (Guidelines D8)

Sentencing submissions

A joint submission on the appropriate sentence is an integral part of the final plea agreement. A large part of the incentive for the defendant to enter into plea discussions will be to clarify and (if possible) limit the eventual sentence.

The submission must not set out a proposal for a specific sentence. The submission on sentence is limited to setting out the applicable sentencing range and starting point in accordance with any relevant sentencing guidelines or authorities Sentencing Guidelines Council and Court of Appeal (Criminal Division) guidelines. Nevertheless, the ability to discuss and agree appropriate charges and an agreed factual basis for them provides a significant opportunity for the defendant to influence both sentencing range and starting point.

The submissions will be not dissimilar to a Plea and Sentence document. The prosecutor must ensure that the submissions are realistic. (Guidelines D9-D10)

They should:

list the aggravating and mitigating features arising from the agreed facts

set out any personal mitigation available to the defendant

refer to any relevant sentencing guidelines or authorities

make submissions as to the applicable sentencing range in the relevant guideline; and

In the course of the plea discussions the prosecutor must make it clear to the defence that the joint submission as to sentence (including confiscation) is not binding on the court. (Guidelines D12)

Confiscation of Criminal Assets

The Proceeds of Crime Act 2002 (POCA) requires the Crown Court to proceed to the making of a confiscation order against a convicted defendant who has benefited from his criminal conduct where the prosecutor asks the court to do so, or the court believes that it is appropriate.

It is open to the prosecutor to take a realistic view, however, of the likely approach of the court to the determination of any points in dispute (such as the interest of a third party in any property). This may also apply in a case where the prosecutor is completely satisfied that full recovery has taken place or no gain has been made; where there is otherwise no merit in pursuing confiscation; or where it is clearly not a ‘lifestyle case’. The prosecutor should refer to such matters in the joint submission. (Guidelines D11)

Any such agreement is subject to the scrutiny of the court and must be fair, reasonable and in accordance with the facts as the evidence shows them to be. Allowing a convicted offender to retain the proceeds of crime is incompatible with the maintenance of public and judicial confidence in the plea discussion process.

Witness immunities and restricted use agreements

Prosecutors should always be prepared to consider whether it would be appropriate to make use of their powers under sections 71-75 Serious Organised Crime and Police Act 2005 (SOCPA) where, for example, it appears likely that the proceedings may continue against other defendants.

Other Prosecutors or Regulators

The prosecutor should liaise with any other prosecuting authority or regulatory body (either in England and Wales or elsewhere) that has an interest in the defendant that he is aware of. This should be done in accordance with the Prosecutors’ Convention and any other relevant agreement or guidance.

The other agency may wish to take part in the plea discussions, or they may authorise the prosecutor to discuss with the defendant the matters which they are interested in, with a view to resolving all matters in one plea agreement.

The prosecutor should warn the defendant that a plea agreement will not bind any other agency which is not a party to it. (Guidelines D13)

Formalities

The agreement must be in writing and signed by both parties and will include (Guidelines E1):

A list of the charges

A statement of the facts; and

A declaration that the defendant accepts the stated facts and admits he or she is guilty of the agreed charges.

The declaration must be signed personally by the defendant. (Guidelines E1)

The Guidelines envisage that the agreement will be signed before charge (and therefore before the case reaches the Crown Court) but there is nothing to preclude an agreement being reached after charge. (Guidelines A8)

Once a plea agreement is signed in a case where proceedings have not yet commenced, the prosecutor should arrange for them to be instituted by charge or summons. The full Code Test must be satisfied on the basis of the signed plea agreement and any other available evidence. (Guidelines E3)

Submission to the Court

In advance of the defendant’s first appearance in the Crown Court, the prosecutor should send to the court (Guidelines E4):

the signed plea agreement

a joint submission as to sentence and sentencing considerations

any relevant sentencing guidelines or authorities

all of the material provided by the prosecution to the defendant in the course of the plea discussions

any material provided by the defendant to the prosecution, such as documents relating to personal mitigation; and

the minutes of any meetings between the parties and any correspondence generated in the plea discussions.

SOCPA agreements

Any agreement under Serious Organized Crime and Police Act 2005 regarding the giving of assistance to the prosecutor by the defendant should be in a separate document accompanying the plea agreement. (Guidelines E2)

Dealing with the agreement

It will then be for the court to decide how to deal with the plea agreement. In particular, the court retains an absolute discretion as to whether or not it sentences in accordance with the joint submission from the parties. (Guidelines E5)

The Guidelines expressly acknowledge that they do not affect the existing practice of judicial sentence indications. (Guidelines A8)

Whether to give a Goodyear indication is at the sole discretion of the trial judge.

The defendant may decline to plead guilty in accordance with an agreement.

The court may reject the agreement.

Subsequent action

In any of these circumstances the prosecutor may authorise charge if satisfied that the Full Code Test is met without the signed plea agreement, or may decide that further enquiries and investigations need to be made with a view to completing the case against the defendant. (Guidelines F2)

If proceedings have already been instituted, the prosecutor should use the appropriate means to delay them – either discontinuing under section 23 or 23A of the Prosecution of Offences Act 1985 or (if the indictment has already been preferred) applying for an adjournment or stay of the proceedings. (F2)

In applying for a stay or adjournment the prosecutor will need to show that the case has been dealt with expeditiously. The records of the plea discussions will be of relevance to any such application.

It will be a relevant consideration if, as a result of the discussions, proceedings were instituted earlier than they would otherwise have been. An adjournment or stay at this stage may not result in the case lasting any longer than it would otherwise have done.

Effect

Both the prosecutor and the defendant’s representatives will continue to be bound by the preliminary undertakings made in relation to the confidentiality and use of information provided in the course of the plea discussions. (Guidelines F2)

This means that (even where the judge rejects the agreement) the prosecutor cannot make use of(Guidelines C8):

the fact that the defendant took part in discussions

any information provided by the defendant against him or her in subsequent proceedings.

The prosecutor can, however, make use of (Guidelines C8):

a signed plea agreement as confession evidence

evidence arising from enquiries into information given by a defendant during discussions

information provided by the defendant about offences that were not the subject of the plea discussions or that were committed by others.

Where plea discussions have broken down for any reason, it will be rare that the prosecutor will wish to re-open them, but he or she may do so if there is a material change in circumstances which warrants it. (Guidelines F3)

The circumstances may, however, be different where the agreement has failed as a result of rejection by the judge.

The Attorney General’s Office must be notified of the initiation of plea discussions. A short report must be prepared for the Attorney General after the completion of the case, whether or not a plea agreement was obtained and whether or not it was successful. The report should indicate the impact of the discussions on the proceedings, any issues that arose and any lessons that were learned in the course of plea discussions.

A review group, including representatives from prosecuting authorities and the Attorney General’s Office will meet after 12 months from commencement of the provisions to carry out an analysis based on the reports submitted.